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| Marsha Levick |
Responding to challenges to both the death penalty and life without parole under the Eighth Amendment, the court relied on scientific research to strike extreme sentences for youths who research shows are categorically less culpable for their criminal conduct than adults.
Youths' core traits of immaturity and impetuosity, susceptibility to negative peer influences, and a unique capacity for growth and transformation convinced the court that the Eighth Amendment's proscription must be read more broadly when evaluating sentencing practices for children convicted as adults in the criminal justice system
These sentencing challenges followed the convergence of two parallel events unfolding in the justice community as we entered the 21st century: the aftereffects of the superpredator myth and emergent psychological research that forced a reevaluation of prevailing assumptions about the crimes committed by youths and the young adults who commit them.
The myth of "superpredator" — a term used to describe a generation of teens who would terrorize and victimize our communities as we turned the corner on a new century — was coined in 1995 by John Dilulio Jr., then a professor at Princeton University. The term was squarely aimed at Black youths and dominated the public discourse at the time on crime and punishment.
Though Dilulio quickly backtracked, acknowledging only a year later "that the term had sort of gotten out and gotten away from me,"[1] the damage was deep and wide. Even as annual crime statistics repeatedly belied the mythical warning, the superpredator threat sent hundreds of thousands of teenagers into America's criminal justice system.[2]
With our sentencing practices already on steroids from recurrent tough-on-crime rhetoric, it was unsurprising that thousands of teens were sentenced to die in prison for crimes they committed as children, or that dozens were awaiting execution on death rows across America.
At the same time, scientific research emerged, revealing stark developmental differences between children and adults who commit crimes. The research identified adolescent traits that reduced youths' blameworthiness for even the most serious crimes.[3] It also showed a correlation between brain development — still underway in key regions of the brain throughout adolescence and into the early 20s — and this developmental immaturity.
This combination of social science and neurological research led the Supreme Court to ban the juvenile death penalty in Roper v. Simmons in 2005, life without parole sentences for all youths convicted of nonhomicide offenses in Graham v. Florida in 2010, and mandatory life without parole sentences for young adults convicted of homicide in Miller v. Alabama in 2012.
Miller was ruled retroactive four years later, in Montgomery v. Louisiana.
Unlike Roper and Graham, which categorically barred particular sentences for all young adults under 18, Miller categorically barred life without parole sentences for a subset of youths convicted of homicide — those rare youths whose crimes reflected "permanent incorrigibility," "irredeemable corruption" or "irretrievable depravity."
The application of Miller's rule is now before the Supreme Court in Jones v. Mississippi, where petitioner Brett Jones is challenging the constitutionality of Mississippi's resentencing him to life without parole absent a determination of this threshold inquiry of permanent incorrigibility.
Argued in November and with a decision expected by June 2021, the case gives the newly configured Supreme Court its first opportunity to address youth rights under the Eighth Amendment.
With hundreds of individuals still awaiting resentencing after Miller and Montgomery, and unknown numbers of youth who may face the possibility of a life without parole sentence in the future, the Jones case is being watched closely.
To date, the issue has split state courts, with at least six states — Georgia, Wyoming, Oklahoma, Iowa, Illinois and Pennsylvania — holding that the Eighth Amendment requires a finding of permanent incorrigibility before a juvenile may be sentenced to life without parole, and four — Mississippi, Washington, Idaho and Michigan — concluding that it does not.
The disagreement among states stems from these courts' views of Miller and Montgomery.
Courts declining to hold that a specific finding of permanent incorrigibility is required rely on Miller's declaration that its ruling "did not require trial courts to make a finding of fact regarding a child's incorrigibility."
Courts concluding to the contrary have taken the Supreme Court's admonition both literally and seriously, finding that the court must resolve at the time of sentencing whether the juvenile is irreparably corrupt and incapable of rehabilitation.
It would be foolish to speculate how the Supreme Court will eventually rule, but it is difficult to imagine a sentencing regime going forward that did not provide for the sorting mechanism the court has explicitly required before a life without parole sentence may be imposed on a child.
As the Montgomery court stated, the goal of the sentencing hearing is to effectuate "Miller's substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity"; careful consideration of age and age-related factors allows the court to "separate those juveniles who may be sentenced to life without parole from those who may not."
This required sorting also flows inextricably from Montgomery's analysis of the retroactivity of Miller.
In determining that Miller created a new substantive rule of constitutional law, the court followed its 1989 ruling in Teague v. Lane, which recognized two key exceptions to the general bar of retroactivity in criminal cases: rules forbidding criminal punishment of certain conduct, and rules prohibiting a particular punishment for a category of individuals based on their status or offense.
Montgomery placed Miller squarely into Teague's second exception. As then-Justice Anthony Kennedy wrote:
Because Miller determined that sentencing a child to life without parole is excessive for all but "the rare juvenile offender whose crime reflects irreparable corruption," it rendered life without parole an unconstitutional penalty for a "class of defendants because of their status" — that is, juvenile offenders whose crimes reflect the transient immaturity of youth.
This makes Miller a categorical ruling — albeit applicable to a smaller class of young defendants — but still no less categorical than Roper or Graham.
Wringing one's hands over whether Montgomery did or did not expand Miller is beside the point. Just as no child today may be sentenced to death, or to life without parole for a nonhomicide offense, no child who is not permanently incorrigible may receive a life without parole sentence in a homicide case.
To allow a sentencing hearing to proceed without requiring this separation — and disqualification — of youth who are not determined to be permanently incorrigible would strip Montgomery's retroactivity analysis of any meaning, let alone Miller's substantive rule.
It is difficult to imagine such a dire outcome in Jones. Unless a new majority of the court is willing to undo the last 15 years of Eighth Amendment case law, some sorting requirement — either an explicit finding of permanent incorrigibility or some other mechanism that guarantees that the risk of disproportionate sentences at the heart of Miller is avoided — seems essential.
Ignoring this sorting requirement entirely would render Miller and Montgomery empty pronouncements, exposing youth to unconstitutional sentences already barred by the court.
Marsha Levick is chief legal officer and co-founder at the Juvenile Law Center.
Disclosure: Levick was the co-author of an amicus brief filed in support of Brett Jones in Jones v. Mississippi. She was also co-counsel for Henry Montgomery in Montgomery v. Louisiana.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.themarshallproject.org/2020/11/20/superpredator-the-media-myth-that-demonized-a-generation-of-black-youth.
[2] https://squareonejustice.org/wp-content/uploads/2020/06/CJLJ8234-Square-One-Youth-Prisons-Paper-200616-WEB.pdf.
[3] https://www.researchgate.net/publication/8968453_Less_Guilty_by_Reason_of_Adolescence_Developmental_Immaturity_Diminished_Responsibility_and_the_Juvenile_Death_Penalty